Fox v. Franken

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The book that caused the lawsuit

Fox News Network, LLC, v. Penguin Group (USA), Inc., and Alan S. Franken was a civil lawsuit filed in the United States District Court for the Southern District of New York on August 7, 2003. Fox News Channel, the plaintiff, sought to enjoin author and comedian Al Franken from using Fox's trademark phrase "fair and balanced" in the title of his then-forthcoming book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Judge Denny Chin denied Fox's motion for injunction on August 22, and the network dropped the suit three days later.

1 Background
2 The lawsuit
3 Aftereffects
4 References
5 External links

[edit] Background

Rupert Murdoch's News Corporation had founded Fox News Channel in 1996, in part to counter what it contended was systemic liberal bias on the part of other U.S. news outlets. To bolster this perception, Fox used "Fair and Balanced" and "We report. You decide," as slogans, implying by omission that other news outlets were unfair, unbalanced, and made decisions on behalf of their audience. Liberals quickly began to accuse the network of itself having a pervasive conservative bias; on liberal Web sites and blogs, "fair and balanced" became widely used as an ironic euphemism for perceived right-wing media bias on Fox and other media outlets.

On May 31, 2003, the cable network C-SPAN2 broadcast a panel discussion on political books that was taking place at BookExpo, a trade show for the book publishing industry. The panel included Franken, whose Lies and the Lying Liars Who Tell Them was scheduled for release in the autumn, and Fox News personality Bill O'Reilly, who was promoting his own book Who's Looking Out For You?, which was due for release at about the same time as Franken's. After Franken told a long story about O'Reilly claiming that his former program Inside Edition had won two Peabody awards (in fact, it had not), the two engaged in a heated confrontation, culminating in a furious O'Reilly shouting "Shut up! Shut up!" to interrupt Franken at the dais. A link to footage of the program quickly circulated among liberal blogs, which had the effect of providing valuable publicity for Franken's upcoming book among an audience that could be expected to be receptive to it.

[edit] The lawsuit

On August 7, Fox News filed for relief in federal court. In what author and editor Richard Blow described as "an eight-inch thick legal filing,"^[1] the network contended that it had been irreparably harmed by the publicity surrounding Franken's use of the phrase "fair and balanced" on the preliminary cover of Lies and the Lying Liars Who Tell Them, which Fox claimed it had first become aware of following the BookExpo panel discussion in May. The filing stated that Franken had "been described as a 'C-level political commentator' who is 'increasingly unfunny'", and claimed that the comedian was "shrill and unstable" and had "appeared either intoxicated or deranged" at a press correspondents' dinner in April 2003.

In response, Franken joked that he had trademarked the word "funny", and that FOX had infringed his intellectual property rights by characterizing him as "unfunny." The publicity resulting from the lawsuit propelled Franken's as-of-then-unreleased book to the #1 sales position on Amazon.com's best-seller list.

On August 22, U.S. District Court judge Denny Chin heard arguments from attorneys representing the plaintiff and the defendant regarding FOX News' sought-for injunction to prevent Franken from using "fair and balanced" in his book's title. In a hearing punctuated at times by laughter from the assembled spectators,^[2] Chin questioned Fox News attorney Dori Ann Hanswirth harshly about her contention that the phrase "fair and balanced" on the cover of Lies and the Lying Liars Who Tell Them was likely to confuse consumers into believing that the book was produced or endorsed by FOX News Channel, at one point asking Hanswirth, "Do you think that the reasonable consumer would believe, seeing the word 'lie' above Mr. O'Reilly's face, that Mr. O'Reilly or FOX were endorsing this book?"

At the end of the hearing, saying that the case was "wholly without merit, both factually and legally," Chin denied the injunction, suggesting further that FOX News' trademark on the phrase "fair and balanced" could itself be in jeopardy. Three days later, FOX News Channel filed to drop the lawsuit.

Though O'Reilly denies it, Franken believes that the commentator goaded FOX News into suing him. In the paperback edition of his book, Franken recalls an unsubstantiated incident at the BookExpo where O'Reilly and FOX News colleague Shepard Smith were waiting for a hotel shuttle, O'Reilly shouting "I'm gonna sue him! I'm gonna sue him!" the whole time.

[edit] Aftereffects

The most direct result of the suit was a windfall for Franken and his publisher, Penguin Group (USA). The book had originally been slated for release on September 22, 2003, but the publicity resulting from the suit prompted Penguin to move the release date up to August 11 and print an extra 50,000 copies, for a total of 435,000; the book was an immediate bestseller. For its part, Fox News Channel was ridiculed by commentators and bloggers on both sides of the political divide, many of whom suggested that the network had filed the suit to placate a thin-skinned Bill O'Reilly in the wake of his run-in with Franken at the BookExpo panel.^[3]

Drawing on Judge Chin's concluding remarks, Franken suggested that Fox News adopt "Wholly Without Merit" as its new slogan to replace the possibly invalid "fair and balanced". In a more serious response, the publishers of the left-leaning Web site AlterNet filed with the U.S. Patent and Trademark Office in December 2003 to have Fox News' trademark invalidated, calling it "notoriously misdescriptive." The USPTO denied AlterNet's application in July 2005.

In 2004, Franken began hosting a talk show, originally titled The O'Franken Factor, on the fledgling Air America Radio network. The program's title was a jab at Bill O'Reilly's show, named The O'Reilly Factor. Franken has claimed that the intention for naming his show The O'Franken Factor was to draw O'Reilly into filing another property infringement lawsuit. Because O'Reilly declined to file a lawsuit, three months after launching his show Franken renamed it to The Al Franken Show. To this day, Franken frequently jokes that his radio show has won "two Peabodys."